The appeal has been preferred by the State Transport Corporation against the award dated 22.03.2006 passed in MCOP.No.596 of 2003 on the file of the Motor Accident Claims Tribunal, (Fast Track Court) Pudukottai granting Rs.1,47,975/- as against the claim of Rs.12,00,000/-.
2.The case of the respondent/claimant was that while he was riding motor cycle on 01.03.2003, the State Transport Corporation bus hit the motor cycle and as a result of which he sustained injuries and sought for compensation by filing claim petition before the Tribunal. It is the further case of the respondent/claimant that after the accident he was admitted in Pudukottai Government Hospital and then he was referred to Trichy Maruthi Hospital and he was taking treatment as in-patient from 01.03.2003 to 30.03.2003. The respondent sustained injuries in the head and all over his body. The claim of the respondent was that at the time of the accident, he was a photographer and taking videos and photographs for marriages and other functions.
3.The appellant State Transport Corporation contested the case contending that the respondent alone was responsible for the accident and because of the rash and negligent riding of the respondent/claimant, the accident had occurred and the injuries sustained by him were invited only by him. Moreover, this is a specific case of the appellant State Transport Corporation that while riding the motor cycle, the respondent/claimant was attending cell phone calls and because of that only, the accident occurred. It is also the contention of the appellant State Transport Corporation that the respondent/claimant did not produce a copy of the driving licence.
4.After considering the facts and circumstances of the case and also the evidence on record, the Tribunal came to the conclusion that the accident had occurred because of the rash and negligent driving of the driver of the appellant State Transport Corporation and awarded the aforesaid amount as compensation to the respondent/claimant. With regard to the questions as to who was negligent and who was responsible for the accident, the Tribunal gave a cogent evidence in Paragraph 6 of the award and awarded Rs.1,47,975/- as compensation. Aggrieved by the same, the present Civil Miscellaneous Appeal has been filed by the appellant State Transport Corporation.
5.The respondent/claimant examined himself as P.W.1 and Doctor was examined as P.W.2. P.W.1 deposed that while he was riding motor cycle from south to north and turned towards east in the roundana, the appellant State Transport Corporation bus from the west came in rash and negligent manner and hit his motor cycle and as a result of which, the accident occurred. A complaint was given by one Mr.Kannan (eye witness) to the police authorities and based on that an FIR was registered which was marked as Ex.P.1.
6.The Tribunal found that the statement made by P.W.1 in his evidence was in consonance with the statement made by the complainant viz., Mr.Kannan in the FIR. Moreover, it is seen from the award that a criminal case was registered against the driver of the appellant State Transport Corporation and charge sheet was also filed which was marked as Ex.P.3. If really, the respondent was responsible for the accident, nothing prevented the driver of the appellant State Transport Corporation to lodge a compliant against the respondent/claimant. Since no such complaint was given, it could be safely presumed that the accident occurred only due to the rash and negligent driving of the driver of the appellant State Transport Corporation. Only based on those documents and evidence, the Tribunal correctly came to the conclusion that the driver of the appellant Transport Corporation bus alone was responsible for the accident.
7.Though, there is a plea with regard to the driving licence of the respondent/claimant, it is seen from the award that no serious efforts were taken by the appellant Transport Corporation calling upon the respondent to produce the copy of the driving licence to summon the transport authority to produce the documents with regard to the driving licence of the respondent.
8.It is the categorical contention of the appellant State Transport Corporation in the counter statement before the Tribunal that the respondent/claimant drove the vehicle attending mobile phone calls without noticing the State Transport Corporation bus and that only led to the accident. However, no evidence was adduced by the appellant State Transport Corporation to prove the said fact.
9.As far as the compensation is concerned, the Tribunal gave its finding in Paragraph 7 of the award. Ex.P.4 is the wound certificate of the respondent/claimant in which it was stated that Ex.P.6, C.T.Scan shows that the injury in two places to an extent of "3x2x2 cm and 1 x 0.75 cm" on the left side of the head and left side of the ear of the respondent/claimant. The said scan proves the grievous injuries sustained by the respondent/claimant and it was also corroborated by the evidence of P.W.2, Doctor. In giving Ex.P.4, Wound Certificate, the Doctor, P.W.2 deposed that he had taken into consideration of the C.T.Scan and Scan report and skull x-ray which were marked as Exs.P.6 to 8 and issued Disability certificate Ex.P.9.
10.Moreover, the Doctor, P.W.2 deposed that the respondent/claimant sustained injury on the right hand side of the brain and as a result, the 8th nerve was affected and because of the said injury, the respondent/claimant cannot identify tastes. Therefore, he issued Ex.P.9, the Disability Certificate, fixing the disability at 36% sustained by the respondent/claimant. Brain is the most vital organ of the human being. Without normal functioning of the brain, man cannot be called normal human being. Any injury to brain would automatically would lead abnormality which would make fellow human beings to reject the victim as "mental". Anything which affects the brain, is a serious matter and it may affect the respondent/claimant at any time in future. However, the Tribunal based on the permanent disability sustained by the respondent/claimant at 36%, a sum of Rs.36,000/- was awarded towards permanent disability.
11.Considering the nature of the injury and also the injury caused to the brain of the respondent, this Court is of the opinion that Rs.36,000/- awarded to the respondent/claimant for permanent disability is too low. As already reasoned any injury caused to the brain would affect the normal function of the human being and it would also lead to loss of expectation in life and enjoyment. Considering the above facts, this Court has to exercise its discretion in an attempt to do complete justice and accordingly grants Rs.2000/- for one per cent of the disability instead of Rs.1000/- per 1% disability and accordingly, the compensation is enhanced from Rs.36,000/- to Rs.72,000/- even in the absence of any appeal from the respondent/claimant.
12.It has already been settled by the Hon'ble Apex Court as well as this Court, even in the absence of any appeal from the claimant, under Order 41 Rule 33 of Civil Procedure Code, this Court has got powers and jurisdiction to enhance the award amount. The
Sections 163 and
166 are beneficial provisions which have been incorporated in the statutes for the benefit of victims of the accident. So, the intention of the Parliament has to be honoured. The sorrows and sufferings of the victims have to be properly addressed and any technical approach would frustrate the noble object of the wonderful social and beneficial legislation. If this Court comes to the conclusion that the amount awarded by the Tribunal is too low it can be enhanced by this Court by re-appreciation under XLI Rule 33 of the C.P.C. The Hon'ble Supreme Court in Dhangir Vs. Madan Mohan reported in AIR 1988 SC 54, held as follows:
"It is true that the power of Appellate Court under Order 41 Rule 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise the discretion on mere technicalities".
There are number of judgments by the Apex Court that compensation could be enhanced even in the absence of appeal by the claimants.
i)2003 (2) SCC 274 in Nagappa Vs. Gurudayal Singh and others
ii)2008(1)TNMAC 234 (SC) The APSRTC Vs. Ramadevi and others
iii)CDJ 2009 SC 779 Sarala Varma Vs. Delhi Transport Corporation and another.
13.The Tribunal awarded a sum of Rs.10,000/- towards pain and sufferings and the same is reasonable and the said amount is confirmed. For transportation and other expenses a sum of Rs.5000/- was rightly awarded by the Tribunal and the same is confirmed. In respect of loss of income for the period while he was taking treatment, a sum of Rs.15,000/- was rightly awarded by the Tribunal and the same is confirmed.
14.The Tribunal based on Ex.P.5 (series), medical bills, awarded a sum of Rs.80,124/- towards medical expenses. Since it was proved by the aforesaid bills and the same is confirmed. Rs.1,850/- towards expenses incurred for taking C.T.Scan and X-ray was awarded and the same is confirmed as reasonable.
15.Accordingly, the award of the Tribunal is modified on the following terms:
"For Permanent Disability .... Rs.72,000/-
16.In this case, the respondent/claimant succeeded, as the Appellant Corporation did not prove as per law, its allegation in its counter statement that the claimant was attending the mobile phone while riding and that he was alone responsible for the accident. If the appellant had proved that the claimant was responsible for accident by attending mobile phone while driving he not only sustained injuries but would not have got any compensation. Irrespective of whether the respondent/claimant was attending the mobile phone while driving or not, it is the common sight nowadays people riding motor cycle/driving vehicles and simultaneously attending mobile phone calls and in most cases, the attention of the motorists are drawn in the conversation over the mobile phones. The mobile user/rider will be affected based on the information received and totally loosing control over the vehicle and there are every possibility of causing accident. As a result many innocent people are injured or sometimes because of the injuries, they succumbed to death.
17.Mobile phone is a fruit of scientific invention. Such a technological device should be used/enjoyed in a proper manner for development and benefit of the user. Otherwise it will lead to many social problems like the road traffic accident causing injuries and death of innocent people apart from injuries to the motorists themselves who most of the time succumb to death. The mobile phone has brought the world into our palm. In recent days, it is the only scientific invention which has reached one and all in a shorter time. Once considered to be luxury and now become essential for every body. Mobile phone providers' association put the number of users of mobile phones in India upto June 2009 at 31.57 crore which is more than 1/3rd of our country's population. In due course, India will top in mobile phone usage. This itself would prove that the mobile has reached almost all our homes in India. Such an useful device should be used usefully and carefully, as the mobile is the attention distractor. One university already banned use of mobile phones inside University, as the usage distracts the students from studies. As mobile phone has become essential thing in the life, the Children should be taught about mobile phones with care and caution.
18.An individual's action would make many families to suffer through out their life. Hence, it is always advisable to avoid talking over mobile phone while riding/driving the vehicles. It is not only in the interest of the motorist but also interest of the general public at large. This Court hopes that the police authorities and transport authorities would act against the erring motorists. It has to be remembered that in many cities like Bangalore, attending mobile phones while driving is prohibited long ago. By attending the mobile while driving, the motorists are only inviting sorrows and sufferings not only to them but also to other innocent people. We can prevent horrible accidents; therefore the police has to take preventive steps like prohibiting the riders attending mobile calls by fine or seizure of mobile phone. Prevention is better than cure. Strict police vigil and severe action alone can deter the violators. Hence Police should take stringent action against those motorists driving vehicles as well as attending the mobile phones by seizing mobile phones or vehicle or both and levying penalty under the provisions of Motor Vehicles Act and Rules.
19.In the result, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P.(MD)No.2 of 2009 is closed.
sms To The Motor Accident Claims Tribunal (Fast Track Court) Pudukottai.